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Fenske v. Service Employees International, Inc.

United States Court of Appeals, Ninth Circuit

August 26, 2016

James Fenske, Petitioner,
v.
Service Employees International, Inc.; Insurance Company of the State of Pennsylvania; Director, Office of Workers' Compensation Program, Respondents.

          Submitted May 12, 2016 [*] San Francisco, California

         On Petition for Review of an Order of the Benefits Review Board, No. 13-0559

          Joshua T. Gillelan, II, Longshore Claimants' National Law Center, Washington, D.C.; Eric A. Dupree, Dupree Law, APLC, Coronado, California; for Petitioner.

          Kenneth M. Simon, Flicker, Garelick & Associates, LLP, New York, New York, for Respondents Service Employees International, Inc., and Insurance Company of the State of Pennsylvania.

          M. Patricia Smith, Solicitor of Labor; Rae Ellen James, Associate Solicitor; Mark Reinhalter, Counsel for Longshore; Gary K. Stearman, Counsel for Appellate Litigation; Matthew W. Boyle, Attorney; Office of the Solicitor, United States Department of Labor, Washington, D.C.; for Respondent Director, Office of Workers' Compensation Programs.

          Before: John T. Noonan, Kim McLane Wardlaw, and Richard A. Paez, Circuit Judges.

         SUMMARY[**]

         Benefits Review Board

         The panel denied a petition for review of a decision of the Benefits Review Board holding that the petitioner, a United States government contractor in Iraq who suffered severe injuries caused by a suicide bomber, could not receive concurrent payments for total disability and permanent partial disability under the Longshore and Harbor Workers' Compensation Act.

         Petitioner sought concurrent compensation for a "scheduled" injury (hearing loss) under 33 U.S.C § 908(c)(13) and total disability caused by his back injury. Petitioner alleged that he was exposed to excessive noise throughout his employment in Iraq.

         The panel held that the holding in Stevedoring Servs. Of Am. v. Price, 382 F.3d 878 (9th Cir. 2004) (as amended) (awarding concurrent payments because the later total disability award was based on a wage that had already been decreased by the earlier partial disability) did not apply because a prerequisite for applying the Price theory is that the partial disability preceded the total disability, and petitioner's hearing loss did not precede his back injury. The panel also held that in a case where the only evidence of hearing loss was a post-retirement audiogram, the rule in Bath Iron Works Corp. v. Director, Office of Workers' Compensation Programs, 506 U.S. 153, 165 (1993) (discussing when a hearing loss occurs and when it is complete for calculating benefits), applied when determining the timing of disability under Price, but Price did not apply in this case because petitioner's last day of exposure to excessive noise was the same day as his back injury. Finally, the panel declined to provide a decreased concurrent award capped at two-thirds of petitioner's wage under ITO Corp. of Baltimore v. Green, 185 F.3d 239 (4th Cir. 1999).

          OPINION

          NOONAN, Circuit Judge.

         James Fenske petitions for review of a decision of the Benefits Review Board of the Department of Labor (the "Board") holding that Fenske could not receive concurrent payments for total disability and permanent partial disability under the Longshore and Harbor Workers' Compensation Act (the "Act"), 33 U.S.C. §§ 901-50. While we generally disallow concurrent awards, Fenske seeks relief under our holding in Stevedoring Servs. of Am. v. Price, 382 F.3d 878 (9th Cir. 2004) (as amended) ("Price"), which allows ...


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